Cover Page. The handle holds various files of this Leiden University dissertation.

Cover Page The handle http://hdl.handle.net/1887/35081 holds various files of this Leiden University dissertation. Author: Huis, Stijn Cornelis van Title: Islamic courts and women's divorce rights in Indonesia : the cases of Cianjur and Bulukumba Issue Date: 2015-09-08

2 Indonesia s Islamic courts: a unification project Courts are, among other things, symbols of authority, and Islamic courts are symbols of Islamic authority. This may in fact be a more important function, from the point of view of those who have power to maintain them or let them be done away with, than the judicial work the courts do. (Lev 1972: 4) 2.1 INTRODUCTION This chapter discusses the historical development of the Islamic courts jurisdiction in Indonesia: first during colonial times, and subsequently after independence. I take as my starting point the idea that knowledge of its history increases understanding of the present-day Islamic court and the symbolic value of recent reforms. Given that the Republic of Indonesia continued the colonial penghulu 1 court system on Java and Madura and established similar Islamic courts outside Java, this chapter focuses entirely on regulations concerning the Islamic court on Java. I acknowledge the different ways in which the Islamic courts history developed outside Java, especially in regions where Islamic courts lacked formal recognition, 2 and therefore portray the courts history in South Sulawesi separately in Chapter 6. In this chapter I argue that ever since the VOC first issued special regulations concerning Muslim family law in 1642, a gradual convergence of Islamic and national law has taken place. This convergence first accelerated when the penghulu courts were made part of the colonial legal system in the nineteenth century. Soon the traditional Islamic institution had to prove its relevance amid two seemingly opposing forces. On the one hand there was a strong desire within the late nineteenth and early twentieth century colonial government and judiciary to unify and modernize the court system. On the other hand the adat law policy in which local customary law was to remain the law of the native (Inlander) gained prominence as well among the same political and judicial colonial elite. As a consequence of the gradual adoption by the colonial 1 The penghulu was the highest Javanese Islamic official of a district (kabupaten) and the head of a Muslim bureaucracy responsible for Muslim affairs. 2 Bowen (2003) gives an elaborate history of the Acehnese Islamic courts, which were never incorporated into the colonial court system.

28 Chapter 2 government of adat instead of Islam as the basis of family law in the Netherlands Indies, as well as the colonial judiciary s antipathy for the old-fashioned penghulus, the Islamic courts increasingly lost the jurisdictional battles with the general colonial courts. When in the 1930s the colonial government decided to significantly decrease the jurisdiction of Islamic courts, these old-fashioned penghulu courts 3 gained strong symbolic value as courts with an Islamic foundation, and, as a consequence, generated support from Muslim organizations that had an alternative, more Islamic, view of modernization. This support proved to be decisive for the Islamic courts survival. After independence, proponents of the Islamic court generally viewed the national legal system as an indispensable part of a modern Muslim state, and strove for an actualization of Islamic courts procedure and law more in keeping with modern times. Hence, I analyze the development of the Islamic court after independence on the basis of Horowitz s observation in the Malaysian case that simultaneously, then, staunch proponents of Islam and detractors of Islamic law are mollified by a course of innovation that is heavy on the convergence of legal systems (Horowitz 1994: 576). Innovation accelerated in Indonesia after the Islamic turn of the New Order regime in the 1980s (Liddle 1996), and resulted in a bureaucratization and rationalization of the Islamic courts, but without compromising their Islamic character. On the contrary, some of the colonial adat law reforms were reislamized. The 1989 Islamic Judiciary Law annulled the loss in the first half of the nineteenth century of the Islamic courts jurisdiction in inheritance and marital property matters. After the fall of the Suharto regime in 1998 this process of convergence of legal systems continued when in 2005 the government put the Islamic courts, previously being administered by the Ministry of Religious Affairs, fully under the umbrella of the Supreme Court and again increased their jurisdiction. After this process, the Islamic courts even gained powers in a field which previously never had been part of the colonial penghulu courts: Islamic banking. 2.2 ISLAMIC COURTS IN THE NETHERLANDS INDIES 2.2.1 Jaksa courts, surambi courts and the role of penghulus in the sultanates of Java When the first Dutch merchant ships arrived on the coast of Java in 1596, the Javanese Muslim sultanates of Demak (1475-1548), Cirebon (1479-1906), Banten 3 Hisyam (2001) provides rich accounts of how the Muslim organizations established in the first half of the twentieth century initially stereotyped the penghulus as rather old-fashioned, colonial civil servants, with lack of Islamic knowledge, and subsequently refutes this image by showing that many penghulus in fact did have considerable Islamic education and knowledge.

Indonesia s Islamic courts: a unification project 29 (1527-1813) and, last but not least, the powerful sultanate of Mataram (1588-1681) had all integrated Islamic law into their court systems: the so-called jaksa 4 courts. 5 Through trade and the hajj, as well as religious studies, the Indonesian sultanates maintained contact with the rest of the Muslim world. The jaksa courts were sultanate courts at the regency level and held jurisdiction in all civil and criminal matters. As in the rest of the Muslim world, three systems of law in a broad sense operated in the sultanates (An Na im 2002: 12): first, sultanic law consisting of decrees and regulations promulgated on the basis of the ruler s authority (siyasa); second, Islamic doctrines (fiqh), of the syafi ite maddhab, and ultimately based on a divine authority; third, customary norms based in adat that ruled the daily lives of local communities. Within the jaksa courts an Islamic judge (qadi) passed judgments in Muslim family law and inheritance law. The position of qadi was not the same in each sultanate or each period. In the Banten Sultanate in West Java, the qadi was also in charge of tax-collection and he personally appointed the lower rank officials in the Islamic bureaucracy who collected Islamic tax of zakat and other taxes at the local level. Thus, the role of qadi in Banten extended beyond the position of chief judge of Islamic justice (see Hisyam 2001; Bruinessen 1995). In Mataram under the reign of Sultan Agung (1613-1646), the venue of the courts was changed from the sultan s palace to the veranda of the grand mosque (surambi). Eventually, the chief of the grand mosque (penghulu) presided over the Islamic courts in all the regencies of the Mataram Sultanate (Lubis 1994:58-59). Because of the perceived resemblance between penghulus and Catholic priests, the Dutch called those surambi courts priest councils (priesterraden). The chief penghulu was the highest authority in religious affairs in a regency under the indigenous regent, serving as both the chief Islamic judge of the Islamic court and the head of the Islamic bureaucracy. This bureaucracy ran from the chief penghulu and other penghulus at the regency level, to the naib at the sub-district level, and kaum (in West Java amil) in the villages. All these functionaries could advise the local population in marital and divorce affairs, but only a penghulu could act as a judge (Hisyam 2001: 35-36; Juynboll 1882). In their judicial role, the penghulus decided family law and inheritance cases and advised in criminal cases within the jaksa court, presided over by the sultan or his representative (Lubis 1994). Islamic hudud punishments, like the cutting off of thieves hands, and the sanctions of retaliation (qisas) and blood 4 Jaksa is Sanskrit for prosecutor. 5 In this part my main focus is the colonial influence on the Javanese Islamic courts, since it was the Dutch regulation of the Javanese courts that eventually created the context in which a national Islamic judiciary could develop (see for instance Lev 1972). In the Muslim kingdoms outside Java Islamic justice also existed, in some areas as a separate part of the judicial organization of a Sultanate and in other areas side-by-side or as part of the customary justice system. A Dutch colonial perspective on where Islamic justice was indigenous can be found in Van de Velde, J.J. (1928), Chapter I and II.

30 Chapter 2 money (diyyat) were imposed during the reign of Sultan Agung, but how often we do not know (Gobée 1884). 6 2.2.2 The penghulus in VOC regulations (1602-1798) After the founding of Batavia in 1619, the VOC initially decided to implement Dutch laws within its occupied territories. 7 Thus, the Instruction of 16 June 1625 8 stipulated that the law in the East Indies would consist of all ordinances that applied in the cities and rural areas in the Netherlands. At that time the VOC territory consisted of relatively few settlements (Ball 1982: 5-6). With the foundation of the magistrate court (Schepenbank) in 1620 renamed Court of Justice (Raedt van Justitie) in 1626 the VOC established a general court for the whole population of the Christian republic of Batavia, and formally abolished the indigenous courts in its directly ruled territory. The VOC soon realized that Dutch substantive law was at odds with the customary and religious practices of the indigenous population. Therefore, it issued several instructions to regulate indigenous legal matters. A VOC instruction of 26 May 1640 stipulated that in inheritance cases of Chinese, Heathens and Moors, the laws and customs of the relevant population would apply. Likewise, Article XIII of the Statutes of Batavia (Bataviasche Statuten) of 1642 stipulated that indigenous law would apply to the indigenous population (inlander) in family law and inheritance matters. Although in the seventeenth century different ethnic and religious communities inhabited the VOC s territory, with different normative systems governing their everyday matters (including family law), the VOC chose not to set up a plural court system in its directly ruled territory of Batavia and surroundings. This changed in the eighteenth century, by which time the VOC had become a major player in local political and military struggles, as a consequence of which a large part of the island of Java had come under its rule. Large parts of East and Central Java became VOC territory according to the peace treaty with the Mataram Sultanate of 11 November 1743. The West Javanese Sultanates of Cirebon and Banten became VOC protectorates in 1680 and 1752 respectively. The legal system of the East Indies, designed for small VOC settlements 6 In the nineteenth century, most crimes were settled with diyyat or compensation money to the victim (Gobée 1884: 19). 7 The description of the legal position of indigenous law and courts, including Islamic courts, vis-à-vis European law and courts in section 2.2.2 and 2.2.3 is partly based on an annex in the General Elucidation of the proceedings of the House of Representatives of the Netherlands 1904-1905, titled the origin and development of the differences in the administration of justice between the European and Native population of the Netherlands Indies (Kamerstukken II 1904/1905, 125.1, A, pp 15-34). 8 Plakkaat van 16 Juni 1625, see Van der Chijs, J.A., Nederlandsch-lndisch Plakkaatboek, 1602-1811.

Indonesia s Islamic courts: a unification project 31 like Batavia and other ports in the archipelago, became unsustainable and was reorganized. On 30 November 1746, the VOC established the landraad in Semarang (Central Java), a general court for the indigenous population in which European judges were instructed to apply indigenous law. 9 In civil and criminal matters, the landraad existed alongside the Raad van Justitie, the first instance court for Europeans, which applied European law. One court was insufficient for such a large territory and in practice the court only attracted inhabitants of Semarang and its direct surroundings. Hence, it is unlikely that the landraad did take over all the judicial functions in marriage, divorce and inheritance affairs: so the penghulus continued performing their traditional tasks. Nonetheless, the establishment of the landraad by the VOC marks a turning point, as it introduced a plural formal court system in the VOC territories of Java: the Raad van Justitie applying Dutch law for Europeans and the landraad applying indigenous law for the indigenous population. 2.2.3 Priests in the Netherlands Indies until the 1882 Priest Councils Regulation In 1798, the VOC went bankrupt and the Dutch government took over the administration of all VOC territories. Daendels, Governor-General of the Netherlands Indies from 1807-1810, decided to expand the legal system. More landraad courts were established on Java, increasingly dividing the colonial legal system into indigenous and European sections. Even in the indirectly ruled sultanates of Banten and Cirebon the jaksa courts had to accept a transfer of jurisdiction in murder cases to the landraad headed by the Dutch resident, the official colonial representative at the regency level and advisor to the indigenous ruler (regent). During this time of expansion of the landraad, Daendels instructed the indigenous rulers of Java s Northeast Coast and Cirebon not to obstruct chief penghulus and penghulus in settling marriage, divorce and inheritance matters, including the division of property (boedelscheidingen) (Nederburgh 1880: 5-6). Article 73 of the Instruction of 1 September 1808 concerning the Reorganization of the European and Indigenous Administration and the Court System at the Javanese Northeast Coast even recognized the judicial powers of the penghulus in marriage and inheritance affairs as it intended to install an appeal possibility at the landraad for the penghulus judgments. 10 Thus, the Dutch colonial government of the early nineteenth century recognized the penghulus role in 9 To this end a compilation indigenous law Mahometaanse wetboek Moghaerer was issued in 1750. See 3.3.1. 10 Plakaat van 1 September 1808 in zake de reorganisatie van het Europeesch en Inlandsch bestuur en van het Inlandsche rechtswezen.

32 Chapter 2 family and inheritance matters and may even had the intention to formally regulate their jurisdiction. However, the Instruction of September 1808 would not be implemented, due to geopolitical developments in Europe. After the Netherlands was occupied by the French troops of Napoleon Bonaparte, the British conquered Java. A short but consequential period of British administration of the Netherlands Indies followed (1811-1816). Lieutenant-Governor Raffles issued in 1814 the Regulation for the more effectual administration of justice in the provincial courts of Java. Java was reorganized into sixteen regencies, each of which formally headed by an indigenous regent, but with the colonial resident in charge of the civil administration, tax levying and indigenous administration of justice. In each regency (residentie) a landraad was established headed by the resident. In Semarang, and Surabaya two new raden van justitie (first instance courts for Europeans and appellate courts for the landraad) were established besides the one that already existed in Batavia. The landraad still had to apply indigenous law and customs, subject to general principles of justice and fairness. The penghulus (and jaksas) were transformed from judges into advisers of the landraad. Neither penghulu nor jaksa courts were made formally part of this colonial court system. In The History of Java, Raffles demonstrated that he had been aware of the imperative role penghulus played in the traditional administration of justice on Java, but he considered this to be contrary to the fully impartial administration of justice he intended to introduce, since they had too many links to the sultan and the regent, who also acted as judges in jaksa court hearings (Raffles 1817: 309-327). Not long after the Dutch returned to power in 1816, they issued the 1819 Instruction on the Courts of Justice in the Netherlands Indies (the 1819 Courts of Justice Instruction), 11 which continued most reforms of Raffles 1814 Regulation. The 1819 Courts of Justice Instruction recognized substantive indigenous law and custom as long as they are compatible with the general principles of justice and Dutch regulations (Article 3). The penghulus retained their place as expert advisors of the landraad, who had to be consulted in civil and criminal matters. However, other than the British, the Dutch, through the 1820 Regulations concerning the Duties, Titles and Rank of Regents on Java (the 1820 Regents Regulation), explicitly recognized the role of penghulus in settling marriage, divorce and inheritance. 12 Article 13 of the 1820 Regents Regulation read: The indigenous regency head (regent) supervises matters of the Muslim religion and guarantees that the priests, in accordance with the Javanese norms and customs, are free in practicing their profession, such as in marriage matters, division of property in divorce and inheritance matters (boedelscheidingen) and such. 11 Instructie voor de Raden van justitie (S 1819/20). 12 Het reglement op de verpligtingen, titels en rangen der regenten op het eiland Java (S 1820/22).

Indonesia s Islamic courts: a unification project 33 This recognition of the role of penghulus (or priests as the Dutch called them) in marriage, divorce and inheritance matters, however, should not be confused with an official recognition of the formal jurisdiction of penghulus as judges. The formal incorporation of the penghulus into the legal system of the Netherlands Indies turned out to be a gradual process in which, perhaps surprisingly, case law played an important role. 13 Initially, case law remained indecisive about the penghulus jurisdiction in judicial matters. In 1834, the Court of Justice of Semarang was the first court that understood Article 13 of the 1820 Regents Regulation to have granted penghulus jurisdiction over disputes concerning marriage, divorce and inheritance (Nederburgh 1880: 9-10). This judgment proved controversial, leading to the issuance of two missives by the Supreme Court (Hooge Raad) in Batavia 14 formulating strong disagreement with the judgment. The first missive read as follows: Article 13 of S 1820/22 only established the fact that they [indigenous population] can consult the priests. By providing priests and chiefs with any larger jurisdiction, the landraad, under [the supervision of] the resident has exceeded the limits of its jurisdiction. The second missive of the Supreme Court clarifies that Article 13 speaks of the profession of priests and does not mention priest councils (priesterraden) at all. Therefore, according to the missive, it is not probable that Article 13 was intended to establish a council or court so that the landraad remains the only court for the indigenous population, even in cases where Muslim laws apply. 15 The missives make clear that in 1835, the Supreme Court in Batavia did not consider the penghulus as judges whose judgments were final and binding for the parties. Against the background of this jurisdictional controversy, in 1835 the Governor-General issued the Resolution concerning Judgments in Civil Actions Resulting from Disputes among the Javanese (S 1835/58) 16 to clarify the scope of Article 13: [...] As ampliative and explication, in order to explain Article 13 of the regulation on the duties, titles and ranks of the district heads on the Island of Java [S 1820/ 22]; that in many instances disputes occur, among Javanese, about matters of marriage, [about] property after divorce and death and such, that must be decided according to Islamic law; that it is the priests who must give a judgment, yet that all civil actions, for settlement and payment, as a result of those decisions, will be brought before the general courts, in order to, whilst respecting those decisions and to ensure the executions thereof, do justice. 13 The part below is mainly based on Nederburgh 1880. 14 The Supreme Court was established in 1806 in the former Raad van Justitie in Batavia. 15 The missive of 18 May 1835; and the missive of 15 September 1835. For the discussion on the stance of the Supreme Court about the status of decisions of penghulu courts, see Nederburgh (1880: 9-18). 16 Resolutie van den Gouverneur Generaal ad interim in Rade, van den 7den December 1835 no. 6. Uitspraak in civiele actiën, voortspruitende uit geschillen, tusschen Javanen onderling (S 1835/58).

34 Chapter 2 The colonial government clearly overruled the Supreme Court. S 1835/58 is important to the history of the Islamic court in Indonesia in three ways. First, it is the first colonial regulation that established the competence of penghulus to adjudicate disputes concerning marriage, and division of property after death or divorce. As such, it opposed the stance of the Supreme Court, which in the very same year, 1835, had described judgments of priests as advice. Secondly, it established a legal mechanism to enforce the priests decisions through the colonial legal system. A request for implementation of decisions by priests had to be addressed to the colonial court (landraad). Officially, this stipulation was intended to ensure enforcement of penghulus judgments, but of course an increased control over the penghulus had also been a consideration. This dependency on the general court to enforce judgments of the Islamic court would remain in place for more than 150 years, and would only be lifted in 1989 by the Law on the Islamic Judiciary, which would provide the Islamic court with autonomy in matters of enforcement capacity. Thirdly, the phrase respecting those decisions and to ensure the execution thereof, implied that an implementation request at the landraad was not an appeal, and, therefore, the landraad could only look at procedural and jurisdictional issues and not treat the legal substance of the priests judgments. Several courts indeed initially interpreted S 1835/58 in this way, and considered the judgments of penghulus to be final. On the whole, S 1835/58 proved to be an essential event in the history of the Islamic court. As we have seen, neither the British legal reforms of the early nineteenth century, nor the opinions of the Hooge Raad pointed to a future incorporation of penghulu courts into the colonial court system. With S 1835/58, the colonial government formally and incontestably recognized the jurisdiction of penghulus in family law disputes. The Regulation on the Judicial Organization and Justice Policies (S 1847/ 23) 17 maintained the penghulus jurisdiction, and enforcement requests still had to be directed to the landraad. Initially, the possibility of appeal at the landraad was included in the draft of the Regulation, but in the end it was decided that penghulus decisions were final and could not be formally appealed (Nederburgh 1880: 25-26). Nonetheless, Article 3 of S 1847/23 introduced three delicate adjustments to the jurisdiction of the priests, making it less straightforward. The first adjustment is that chiefs (according to Nederburgh, Chinese chiefs) appear alongside priests as institutions with jurisdiction in the abovementioned civil disputes. Secondly, the priests and chiefs administered justice over the indigenous population (Inlanders) and persons who are equated with them, whereas the subjects of S 1835/58 were the Javanese (Javanen). As we will see in Chapter 7, this generalization created confusion about the status of the Islamic courts outside Java. Thirdly, Article 3 changed 17 Reglement op de Rechterlijke Organisatie en het Beleid der Justitie.

Indonesia s Islamic courts: a unification project 35 the jurisdiction of the priests to those civil disputes, which according to their religious laws or old customs and institutions (instellingen), should be decided by their priests or chiefs. S 1835/58 had been very specific about the priests jurisdiction; it applied in disputes concerning marriage, and division of property after a divorce or death. Based on interviews with people involved in the law-making process, Nederburgh concluded that those changes were not intended to change the jurisdiction of the penghulus, but anticipated the creation of judicial bodies for the Chinese population presided over by their chiefs, which was planned but never came about (Nederburgh 1880: 28). However, as I will explain below, in practice this lack of specificity regarding the jurisdiction of the penghulus provided the general colonial courts room to decide what this jurisdiction exactly encompassed. In 1848, the Netherlands adopted a constitution turning the Netherlands into a parliamentary monarchy. In addition to the constitutional provisions considered applicable to the Netherlands Indies, special provisions were incorporated into a proto-constitution, the Governmental Regulation of the Netherlands Indies (Regeringsreglement van Nederlandsch Indië; RR). 18 The RR adopted a provision concerning the jurisdiction of priests which is very similar to Article 3 of the Regulation on the Judicial Organization in Article 78(2) RR which established their jurisdiction in matters where according to the local religious laws, and old customs (godsdienstige wetten en oude herkomsten) priests and chiefs were to decide. As he had done regarding the Regulation on the Judicial Organization Nederburgh argued that Article 78(2) was not intended to and did not annul S 1835/58 (Nederburgh 1880: 31, 32). Nevertheless, the inclusion of old customs in Article 78 (2) RR and Article 3 of the Regulation on the Judicial Organization broadened the landraad s discretion in decisions concerning what the jurisdiction of penghulus was. No one knew exactly what the old customs were and what they said about penghulus. In this way, the landraad could exercise considerable control over them. Indeed, after 1848, case law of the landraad and Raad van Justitie would demonstrate that those courts assumed discretion in interpreting what the old customs were, thereby limiting the priests jurisdiction and effectively nullifying their judgments in all disputes concerning marital property and inheritance. 19 18 S 1855/2. 19 For a description of the case law on the appeal issue see Nederburgh (1880) and Van der Velde (1928).

36 Chapter 2 2.2.4 The unification of Javanese penghulu courts under the 1882 Priest Councils Regulation After including the penghulus in the RR as priests, and with mounting criticism in the Dutch parliament concerning the economic, political and religious power of local penghulus, 20 notably in West Java, the Dutch government attempted to regulate and decrease their powers. 21 The Regulation concerning the Priest Councils on Java and Madura (1882 Priest Councils Regulation) 22 was part of this strategy, since it pulled away the priest councils from the administrative control of the Javanese regents and brought them under the direct administration of the Department of Internal Affairs (Lev 1972: 13). The official aim of the 1882 Priest Councils Regulation was to curb corruption and to prevent inconsistent judgments by the penghulus. In fact, the Dutch government had the additional aim of increasing control over the penghulus and Islamic justice on Java (Hanstein 2002: 50). The 1882 Priest Councils Regulation consisted of a mere seven articles and in fact did not include measures that were necessary to curb corruption, like providing a salary for its officials. Only the chief penghulus received a salary as heads of the Islamic bureaucracy, and for their advisory work at the general colonial court, among other duties (Berg 1882: 18). 23 The judicial work in the priest councils of all other penghulus remained unsalaried, making their income dependent on informal fees and was therefore ineffective in achieving its anti-corruption aim (Lev 1972: 14). The 1882 Priest Councils Regulation did increase government control over the penghulus by creating a unified administration of Islamic justice on Java and Madura, tearing down in the process the Islamic pillar of the Javanese sultanate legal system. According to Daniel S. Lev, the removal of the penghulus from the indigenous court system resulted in an Islamic judiciary that was more independent from the local aristocracy and had a more supra-local orientation (Lev 1972: 14-17). As such, it may be seen as the birth of the national Islamic court of today. On the other hand, the penghulus associations 20 A good example is the debate in 1870 between the Minister of Colonial Affairs, the Governor-General of the Netherlands and the Parliament concerning the strong economical position of priests in the Preanger, West Java. Source: Invoering der reorganisatie van de Preanger regentschappen, Kamerstukken II 1870-1871, 82, 1-3, pp 1221-1231. I will further elaborate on the central role of ulamas in West Java, and Dutch attempts to diminish their power in Chapter 5. 21 Article 17 of the Instruction to the Regents (Instructie voor de Regenten in de Gouvernementslanden; S 1867/114), for instance, was intended to increase control of the colonial government over the priests. It stipulated a priests registration requirement for the Regent and prohibited unregistered individuals to act as a priests. The registers had to be send to the resident (Berg 1882: 2). 22 Reglement betreffende de priesterraden op Java en Madura (S 1882/152). 23 This was stipulated in S 1867/125. See Hisyam (2001) on the penghulu under the Dutch administration.

Indonesia s Islamic courts: a unification project 37 with the colonial regime undermined their independence in the eyes of the Javanese Muslim community. Independent and often anti-colonial kyais and ulamas questioned the penghulus motives and expertise in Islamic matters and consequently became a rival authority to them at the local level (Lev 1972: 12-13; Hisyam 2001, Laffan 2003). 24 Even so, the 1882 Priest Councils Regulation laid down some foundational aspects of the future Islamic courts. Article 1 stipulated that alongside every landraad on Java and Madura there should be a priest council. Articles 2 and three stipulated that a priest council should consist of a minimum of three and a maximum of eight penghulus and was presided by the chief penghulu. The Governor-General of the Netherlands Indies appointed and dismissed the penghulus. This was a slight change regarding an Instruction of the Governor-General (S 1867/168) which provided that the resident appointed the penghulus and the Governor-General the chief penghulus. Articles 4, 5 and 6 concerned procedure. To render a judgment valid, a panel of penghulus had to consist of at least three members, including the chief penghulu as chair. The judgment, including the legal justification, had to be written down, signed by all members of the panel of penghulus, and kept in a registry. 25 The litigants were to receive a copy of the judgment. Article 7, finally, stipulated that when a priest council transgressed its jurisdiction, the judgments could not be enforced through an executoirverklaring by the landraad. These procedural stipulations were meant to improve the internal and external checks and balances, and to improve consistency of judgments. They would remain in force until 1989 when the Law on the Islamic Judiciary withdrew them. 2.2.5 The jurisdiction of the priest councils in case law from 1848-1927 The 1882 Priest Councils Regulation did not regulate the jurisdiction of priest councils. Thus, the imprecisely worded Article 3 of the 1847 Regulation concerning the Judicial Organization and Article 78(2) of the 1854 RR still applied. Hence, the judge of the landraad, the appellate Court of Justice and ultimately the Supreme Court had broad discretionary powers in determining the jurisdiction of the priest councils, Their case law regarding the execution of priest councils decisions (executoirverklaring) determined in fact this jurisdiction. In his dissertation, J.J. van de Velde (1928) has made a legal analysis of this case law in the period 1848-1926. His analysis demonstrates that judgments of the Supreme Court, the Court of Justice of both Semarang and Surabaya, 24 See also Chapter 4. 25 Raffles (1817) noted that traditionally the penghulu in the surambi courts already wrote down their decisions and kept a registry.

38 Chapter 2 and a number of landraad 26 were initially inconclusive about the jurisdiction of penghulu courts, but by the early twentieth century case law had settled the matter. I will not go into the details of the judgments themselves but restrict myself to summing up the different legal issues in which the priest court was or was not competent according to this case law. First of all, case law of the period 1848-1926 established that the judge considered the priests councils competent in validating marriage and divorce. The jurisdiction of the penghulus in these fields was undisputed (Velde 1928: 68-70). Secondly, landraad case law and the appellate Court of Justice had been inconclusive about the enforceability of priest councils judgments concerning maintenance or support (nafkah) until, on December 27 1894, the Supreme Court in Batavia denied enforceability of a decision of the priest council of Tegal, and argued that this whole overdue nafkah dispute should have been brought before the landraad, because disputes concerning overdue nafkah had to be considered general debt cases (Velde 1928: 71-73). In theory, this meant that from 1894 onwards the priest councils had no jurisdiction to order the husband to pay a certain amount of overdue nafkah. However, in practice the penghulu did not apply the principle of precedent, and without exception would accept all nafkah cases including those concerning overdue maintenance (Velde 1928: 61). Thirdly, disputes concerning the division of property upon divorce (boedelscheidingen) were one of the fields explicitly mentioned in S 1835/58 as falling under priest councils jurisdiction. However, although the landraad and the appellate Raad van Justitie generally considered a consensual division of marital property to fall within the jurisdiction of the priest councils, the landraad considered disputes to fall within their own jurisdiction (Velde 1928: 70-71). The same approach could be found in case law concerning inheritance matters. The priest councils were generally considered competent in determining who the inheritors were, and in establishing the subsequent division of the inheritance (Velde 1928: 126). However, towards the 1920s, landraad case law and the Raad van Justitie denied the priest council s jurisdiction in cases where the inheritance was disputed. As appears from three decisions by priest councils in the 1920s, they did not always consider themselves competent in inheritance cases in which the property was disputed, and referred the parties to the landraad (Velde 1928: 74-78). Thus, before the 1931 Regulation on Religious Justice 27 regulated the jurisdiction of priest councils (see 2.2.7 below), the development of case law in the early twentieth century most commonly pointed to a refusal of their jurisdiction in disputes concerning property and debts in divorce and inherit- 26 In the Dutch language the correct plural form for landraad is landraden, but I choose to use landraad for the singular and plural form in order not to confuse the reader. 27 Reglement op de godsdienstige rechtspraak, de benoeming van voogden en de inlandse boedelkamers op Java en Madura (S 1931/53).

Indonesia s Islamic courts: a unification project 39 ance cases. In practice, this meant that by the 1920s, the landraad, Court of Justice and the Supreme Court considered the priest councils to be competent to issue declaratory judgments only, while the landraad was competent to order an action from one of the parties. One may say that as an echo of the first missive of the Supreme Court in 1835, and with the exception of judgments concerning the validity and the validation of marriage and divorce, the formal status of the penghulu courts judgments in disputes concerning marital property and inheritance was again reduced to advice (fatwa) and the penghulus role as judges reduced to mediators. S 1835/58 had lost all legal force. Of course, this does not mean that the priest councils in practice did not issue court orders on those matters anymore, but rather that their orders could no longer be enforced through the colonial legal system. 2.2.6 Adat law at the heart of colonial policies concerning Islam The limitation of the priest councils jurisdiction through case law was closely linked to controversies among experts and government advisers in the late nineteenth and early twentieth century, centering on the role of Islamic law in the life of Indonesians. Up to the 1880s, experts like Winter, Keyser and Van den Berg had formulated the prevailing opinion that Islamic law ruled the lives of Indonesian Muslims, and that the differences between prescribed norms and local practices were caused by persistent local customary norms, regulations by the local authorities or incorrect behavior a theory that has become known as receptio in complexu. As a critique of receptio in complexu, the so-called adat law (adatrecht) school of the Dutch scholars Snouck Hurgronje, Van Vollenhoven and Ter Haar developed the reception theory (receptietheorie). Reception theory held that it was not Islamic law that ruled everyday life in Indonesia, but customary law or adat law. According to the adat law school the role of Islamic law had to be limited to those Islamic norms that the local adat law had incorporated or received. Thus, living norms rather than prescribed norms of Islamic law were central. During the first half of the twentieth century the adat law school would prevail. In the opinion of the adat law proponents, the indigenous population should as much as possible be ruled by their own adat law norms and, therefore, the landraad should apply the local adat law (defined as adat norms with legal consequences) in their judgments. Although they saw adat law as a living law, the adat law scholars also tried to preserve local customary law, thus, whether intentionally or not, sustaining traditional hierarchies which facilitated colonial rule (Benda-Beckmann, F. & Benda-Beckmann, K. 2011; Burns 2004; Prins 1954). Van Vollenhoven expressed his concern about the encroachment of both Islamic and European law on adat practices within society (1931: 70). Like Snouck Hurgronje (Adatrechtbundel I 1911: 210), he was of the opinion

40 Chapter 2 that the regulation and unification of priest councils in 1882 was based on misconceptions of the colonial administrators concerning the role of Islamic law in society (Vollenhoven 1931: 565). The influence of the adat law school was visible in the new proto-constitution of the Netherlands Indies, the Indische Staatsregeling (S 1925/415; IS), which replaced the old 1854 RR (Nurlaelawati 2010 :48). 28 Article 134 (2) on the jurisdiction of the penghulu courts amended Article 78 (2) 1854 RR as follows: civil lawsuits between Mohammedans fall under the jurisdiction of the religious judge, provided that this is in accordance with their adat law, and not contrary to stipulations in [colonial] legislation. Hence, Islamic law was made subordinate to adat law, and the general colonial courts had to take local adat norms as starting point in judgments concerning execution of penghulu courts judgments. Both in policy and the administration of justice the opinions of the adat law specialists became central, rather than those of Islamic law specialists. 29 2.2.7 Limiting the formal jurisdiction of the penghulu courts (1931) Case law of the colonial courts, adat law policy and the adat law clause in Article 134(2) of the 1925 IS all pointed to a change in policy towards the penghulu courts. Indeed, in 1922 the Dutch government created a commission to assess the jurisdictional division between the priest councils and the landraad on Java and Madura. The commission was headed by RA Hoesein Djajadiningrat, a specialist in both Islamic law and Javanese and Sundanese literature and culture, employed by the Law School (Rechtshogeschool) in Batavia, and who, moreover, in 1924 would become the first native Indonesian with the rank of Professor. The commission also included Professor Ter Haar, a main proponent of the adat law school as well as representatives of penghulus and Muslim organizations, the most renowned being Mohammad Dahlan of the Muhammadiyah (Lev 1972: 18). Despite the presence of the penghulus and the representatives of the Muslim organizations, the commission drafted a report recommending a major transfer of the penghulu courts jurisdiction to the landraad. With the exception of the dower (mahr) and maintenance (nafkah), jurisdiction over all matters concerning 28 The Indische Staatsregeling came into force on January 1 1926. Only one of seventy-seven decisions by the Dutch colonial courts and four (of 166) of the priest councils discussed in Van de Velde 1928 were issued after this date, hence my decision to discuss the Netherlands Indies case law of 1848-1926 in section 2.2.5. 29 Snouck Hurgronje as an Islamic law expert took a slight different position than his successors. He believed that the development of Islam should be the main focus of colonial policies, whereas the adat law scholars of the last decades of the colonial period, like Ter Haar, mainly were interested in securing and preserving what they understood as tradition (Lev 1972: 17).

Indonesia s Islamic courts: a unification project 41 property, including inheritance matters, was transferred to the landraad, which should apply adat law rather than Islamic law. Execution of Islamic courts decisions still required an executoirverklaring. The commission also recommended to improve the education and provide a salary of all staff of the penghulu courts, a matter the Muslim organizations had brought up (Lev 1972: 17-22; Hanstein 2002: 50-52). 30 The subsequent draft regulation adopted the recommendations of the Djajadiningrat Commission. The draft Regulation was accepted by the Dutch parliament, with the caveat (S 1931/53, Article 5) that, because of the sensitivity of the subject, the Governor-General of the Netherlands Indies would decide when it would come into force. In 1931, in order to prevent protest by the Muslim community, Governor-General De Jonge decided to introduce only the procedural second and third chapter of the 1931 Penghulu Courts Regulation. It was six years later when Tjarda van Starkenborgh Stachouwer, the last Governor-General of the Netherlands Indies, introduced the first chapter concerning the transfer of jurisdiction through S 1937/116. 31 As could have been expected, it led to heavy protests from Muslim organizations (Hanstein 2002: 52). Moreover, even Hazairin, a well-known Dutch-trained adat law scholar with a PhD from Leiden University, called reception theory the theory of the devil which insults the faith of Muslims, God, the Qur an, and the Traditions of the Prophet (Nurlaelawati 2010: 48). Among the most active opponents of the 1931 Penghulu Courts Regulation were the penghulus of the Islamic courts on Java and Madura, who decided to organize themselves in the Association of Penghulus and their Staff (Perhimpunan Penghoeloe dan Pegawainya; PPDP) to advance their interests. On 16 May 1937, the PPDP held its first conference, during which it submitted a joint statement to the colonial government. The statement protested the withdrawal of their jurisdiction in inheritance and waqf cases, and stressed the inconsistent nature of adat law vis-à-vis Islamic law. The PPDP even threatened to label people living under adat law as apostates (Hanstein 2002: 55). The penghulu s fierce resistance was partly due to the fact that inheritance cases were the most rewarding, since it was customary to pay a fee (usur) of ten percent of the value of the property, 32 while the Department of Internal Affairs, because 30 Nonetheless, to dissatisfaction of the penghulu, the Dutch never implemented it. See Hisyam (2001). 31 In the same year, the 1937 Regulation on Religious Justice in parts of Southern and Eastern Borneo (Reglement op de godsdienstige rechtspraak voor een gedeelte van de residentie Zuideren Oosterafd. van Borneo; S 1937/638) regulated and recognized the local Islamic courts that were called qadi courts and a separate regulation (S 1937/ 639) established an Islamic high court in Banjarmasin. Other than the penghulu courts in Java and Madura, the qadi courts in Kalimantan would retain jurisdiction in inheritance matters. 32 Ironically, Muslim organizations like Sarekat Islam in the past were amongst those who had harsh criticism of the customary usur practice, for which there is no base in Islamic law (Hisyam 2001:192-197)

42 Chapter 2 of budgetary reasons, kept postponing the implementation of the provision stipulating a salary to all penghulu courts staff (Lev 1972: 21). However, this aspect of personal interest should not distract us from the genuine ideological opposition to the colonial government s adat policy. In the end the protests were unsuccessful, and the colonial government did not relent (Hanstein 2002: 55). The penghulus then turned to a strategy of silent rejection, and continued their role as Islamic experts in inheritance cases giving legal opinions (fatwa) concerning the division of the inheritance. Those fatwa would only be effective when they resulted from an agreement between all parties (Lev 1972: 185-222). As mentioned above, even before 1937 landraad case law had established that disputes concerning an inheritance should be brought before the landraad, and judgments of penghulu courts in such disputes could not be enforced. A second reform in 1937 seems to be at odds with the limitation of the penghulu courts jurisdiction. The creation of an Islamic high court in Surakarta, falling under the responsibility of the Ministry of Justice, seems atypical in the era of the adat law school. 33 However, there is an explanation for this further institutionalization of Islamic courts. Shapiro states that the establishment of appellate Islamic courts is often driven by concerns for political control (Shapiro 1986: 222). In other words, the colonial government expected the Islamic high court to implement the reforms of 1931 and 1937, and to make sure the first instance penghulu courts would do the same. The Islamic high court indeed implemented the jurisdictional changes, and as we will see in Chapter 6, denied the jurisdiction of Islamic courts in South Sulawesi on the grounds that it never had been a customary institution there. Some penghulus opposed the creation of the Islamic high court, probably out of fear that the colonial government wanted to increase its grip on them (Lev 1972: 30). But generally the Islamic high court was welcomed by Muslim intellectuals and seen as a significant increase in status of the Islamic court. This was already an indication that opposition was not directed against state influence as such, but rather against any perceived attack on the last bastion of Islamic law, Muslim family law. The issue of family law proved to have the power to unite the otherwise divided Muslim organizations and temporarily silence their criticism of the penghulus, who were generally appointed from the ranks of the local nobility and according to independent ulamas, sometimes lacked expertise in Islamic law (Lev 1972: 12-13). When Dutch colonial rule was abruptly brought to an end by the Japanese invasion of 1942, the Dutch, in spite of the limitation of the Islamic courts jurisdiction, had sown the seeds for Islamic courts as a recognized branch of the national judicial system. In 1882, the courts had been brought under colonial administration, making them less dependent of local rulers. The 33 The chapter concerning the Islamic high court (Hof van Islamietische Zaken) for Java and Madura in the 1931 Penghulu Courts Regulation came into force through Staatsblad 1937/610.

Indonesia s Islamic courts: a unification project 43 Islamic high courts were intended to ensure more consistent judgments. They were welcomed as a modernization of the Islamic court and had the potential to speed up its bureaucratization. Nonetheless, the image of the Islamic court as an old-fashioned remnant of the past proved persistent. It would take another fifty years before the tide would turn. 2.3 THE JAPANESE OCCUPATION (1942-1945) Few changes took place under Japanese occupation (1942-1945) with regard to Islamic courts. However, in the future political landscape in the independent Republic of Indonesia regarding the Islamic courts already became visible. The nationalist parties, as well as the growing communist party, wanted to abolish the Islamic courts. Islamic parties objected, and pressured the Japanese to increase the jurisdiction of the Islamic courts and improve the standard of the judges Islamic education. In January 1945, Indonesian representatives of political parties in the Sanyo Kaigi (an advisory body of the Japanese government in Indonesia, established in 1944 in order to plan Indonesia s future independence) voted on the question of whether it was necessary to retain the Islamic court alongside the general court. Many influential Indonesian politicians, including Soepomo and Hatta, preferred unification of the legal system, and wanted to abolish the penghulu courts altogether. However, the proponents of the Islamic court outvoted their opponents by one vote: six votes against five (Lev 1972: 36-39). As a result of this narrow escape, the Japanese changed nothing with regard to the penghulu court other than renaming it Sooryo Hooin. The status quo in the Sanyo Kaigi concerning the Islamic character of the future Republic seemed to change on the eve of the declaration of independence (17 August 1945). From June to August 1945 a preparatory committee had been in the process of drafting the constitution of the future independent republic of Indonesia. The Islamic and secular representatives worked out a compromise; the so-called Jakarta Charter. The preamble of the draft constitution said that the state is based on the belief in the all-mighty God, with the obligation to carry out sharia for the adherents of Islam. This clause was also incorporated into Article 29 of the draft constitution. The sharia clause was removed from the constitution, because prior to the proclamation of independence, secular forces surrounding president-to-be Sukarno had succeeded in convincing him and influential Muslim leaders that the Islamic clauses would threaten national integrity (Lev 1972: 43). In itself, adoption of the Jakarta Charter would not necessarily have meant that the Islamic courts would obtain a broader jurisdiction. An inclusion of the sharia clause in the constitution could also have resulted in the application of Muslim family law by general court judges, a practice that is quite common in Muslim